FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12846/02 by Bettina R Ö HL against Germany

The European Court of Human Rights (Fifth Section), sitting on 9 October 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 21 March 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Bettina R ö hl, is a German national who was born in 1967 and lives in Hamburg in Germany . She was represented before the Court by Mr P. Plog, a lawyer practising in Hamburg . The German Government (“the Government”) were r epresented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin , of the Federal Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

In 1998 the applicant, a professional journalist, started private investigations into an arson attack carried out against police officer W. during a demonstration held in Frankfurt on 10 May 1976. Police officer W. survived, but had been very seriously injured.

In February 1999 the Frankfurt Public Prosecutor ’ s Office re-opened criminal investigations into the 1976 incident directed against Ms J. H. on suspicion of attempted murder.

In January and February 2001 German public television broadcasted two of the applicant ’ s films dealing with different aspects of the events in 1976 and her own investigations.

2. The search of the applicant ’ s residential premises

On 31 May 2001 the Frankfurt District Court ( Amtsgericht ) issued a warrant to search the applicant ’ s apartment, which read as follows:

“In the context of the preliminary investigations against

...[J.H.]

on suspicion of an offence pursuant to sections 211, 22, 23 of the Criminal Code [attempted murder],

on request of the Frankfurt Public Prosecutor, the search of the residential and side premises of Brigitte Röhl pursuant to sections 103, 105 of the Code of Criminal Procedure are ordered.

According to the present results of investigations, there are facts to suggest that the search will allow the seizure of the following objects:

Documents concerning the incident of 10 May 1976 in Frankfurt/Main which shed light on the relevant course of events.

The evidence found has to be placed in official custody or to be secured otherwise. If section 98 § 2 applies, the seizure has to be confirmed within three days by court order.

Reasons:

As a result of police investigations, the accused J. H. is suspected of having, on 10 May 1976, during a demonstration on the occasion of the death of Ulrike Meinhof, thrown explosives on a police car and of thus having inflicted life-threatening injuries on police officer W.

The above-mentioned documents may be of importance as evidence for the investigation.

The journalist Röhl is supposed to be in possession of extensive documentation concerning the demonstration which took place on 10 May 1976 in Frankfurt/Main. This is supposed to lead to indications as to the identity of the offender.

The search may be averted by handing over the documents voluntarily.”

By decision of 13 July 2001 the applicant ’ s forename was corrected into “Bettina”.

The search of the applicant ’ s apartment was carried out on 18 July 2001 in the presence of the applicant and an officer of public prosecution. Several documents, data carriers and the hard disk of the applicant ’ s personal computer were seized.

The applicant objected to the search and appealed against the search and seizure decision on that same day. She stated that she relied on her journalist ’ s right to refuse to give evidence. She further pointed out that she had deposited all relevant material outside her apartment, so that it had not been found during the search. She emphasised that the seized material, which related to her book project, should be returned in order to avoid further damage.

On 19 July 2001 the applicant ’ s personal computer was returned to her, while the Public Prosecutor retained a copy of the hard disk.

By further letters of 19 and 23 July 2001 the applicant pointed out, inter alia , that the Public Prosecutor ’ s Office had expressly acknowledged her journalist ’ s right to refuse to give evidence. She further emphasised that she had been willing to co-operate with public prosecution.

By letter of 27 July 2001 to the Frankfurt Public Prosecutor ’ s Office the applicant, represented by counsel, referred to her appeal of 18 July 2001 and requested to be granted access to the case-file.

On 30 July 2001 the Public Prosecutor informed the applicant ’ s counsel that he could not grant that request, because the case-file had been dispatched to the Regional Court.

On 31 July 2001 the Frankfurt Regional Court ( Landgericht ) rejected the applicant ’ s appeal, finding that the applicant ’ s own statements as a witness had justified the assumption that the search of her apartment would yield evidence relevant for clearing up a serious criminal offence committed by a third person, namely the attempted murder of police officer W. in 1976. The measure was proportionate with regard to the seriousness of the offence. The applicant ’ s documents were not exempt from seizure pursuant to section 97 § 5 of the Code of Criminal Procedure ( Strafprozessordnung , see relevant domestic law below). According to this provision, the seizure of documents was inadmissible if they were found in the possession of a journalist who had the right to refuse to give evidence under section 53 § 1 of the Code of Criminal Procedure. The applicant did not belong to this group of persons, because the seized documents had not been acquired in the course of preparation of an article in a periodical newspaper or broadcast. According to the applicant ’ s own submissions, the material had been researched by the applicant in the course of her book project. It followed that the applicant did not have the right to refuse to give evidence in this respect.

This decision was served on the applicant ’ s counsel on 7 August 2001 .

In the meantime, on 2 August 2001, the applicant ’ s counsel, in a letter to the Frankfurt Public Prosecutor, submitted that the applicant had been for years professionally active in the preparation, production or dissemination of periodically published material and television broadcasts and that this had been known both to the Public Prosecutor and to the Frankfurt District Court. She was currently not only working on her book project, but also on periodicals and, in particular, on television broadcasts relating to the events in 1976.

By letter of 4 September 2001 , which reached the applicant on 11 September 2001 , the Frankfurt Regional Court informed the applicant that her request to be granted access to the case-file had to be directed to the Public Prosecutor, to whose offices the case-file had been returned following the termination of the complaint proceedings.

On 7 September 2001 the applicant lodged a complaint combined with a request for an interim measure against the Frankfurt Regional Court ’ s decision of 31 July 2001 with the Federal Constitutional Court, in which she gave an account of the proceedings before the domestic authorities and complained that the search of her apartment and the seizure of her documents violated her journalist ’ s right to refuse to give evidence. She alleged that the Frankfurt Public Prosecutor ’ s Office had been fully informed about the scope of her journalistic work and that her investigations into the incident on 10 May 1976 did not relate to her book-project. She further submitted that the domestic authorities purposefully denied her access to the case-file.

On 13 September 2001 the Federal Constitutional Court , sitting as a panel of three judges, refused to accept the applicant ’ s constitutional complaint for adjudication as being inadmissible. This decision was served on the applicant on 21 September 2001.

3. Further developments

In September and October 2001 the applicant requested access to the case-file relating to the search of her premises. By letter of 21 October 2001 the Public Prosecutor ’ s Office informed her that she did not have a right of access to the files of the main proceedings – as she herself was not charged of any offence – and that a separate case-file concerning the search of her apartment did not exist.

On 12 October 2001 the Frankfurt District Court refused to return a file, which had been seized during the search, to the applicant. It noted that a copy of the file had been handed out to the applicant and that the examination of the content of the file had not been terminated.

On 16 June 2006 the remainder of the applicant ’ s seized property was handed out to the applicant ’ s counsel.

1. Relevant provisions of the Code of Criminal Procedure

Section 103 of the Code of Criminal Procedure ( Strafprozessordnung ) provides that the home and other premises of a person who is not suspected of a criminal offence may be searched by order of a judge only in order to apprehend a person charged with an offence, to investigate the traces of an offence or to seize specific objects, provided always that there are facts to suggest that such a person, trace or object are to be found on the premises to be searched.

Section 53 § 1, number 5 as in force until 22 February 2002 provided that individuals who are or were professionally involved in the preparation, production or dissemination of periodically published material or radio broadcasts had the right to refuse to give testimony concerning the author, contributor or informant providing contributions and documentation and concerning information received by them in their professional capacity insofar as this concerned contributions, documentation and information for the editorial element of their activity.

On 23 February 2002 a second sentence and third sentence were added to section 53 § 2. The second sentence provides that persons as defined by § 1, number 5 do not have a right to refuse to give testimony with respect to their own research materials, if their testimony is destined to contribute to investigations concerning a crime or another specified offence and if the investigation into the facts would otherwise lack prospect of success or would be seriously obstructed. According to the third sentence of that same paragraph, the witness retained the right to refuse to testify if he would otherwise reveal his sources.

Pursuant to section 97 § 5, the seizure of documents, audio, visual and data recording media, illustrations and other images in the custody of persons referred to in Section 53 § 1, number 5, shall be inadmissible insofar as they are covered by the right of such persons to refuse to testify.

All first instance court decisions relating to the search and seizure are subject to an appeal (section 304 of the Code of Criminal Procedure).

2. Relevant provision of the Rules of Procedure of the Federal Constitutional Court

According to sections 23 § 1 and 92 of the Rules of Procedure of the Federal Constitutional Court a constitutional complaint has to be submitted in written form. The applicant has to name the right which has allegedly been violated and the action or omission which allegedly let to the violation.

Section 92 § 2 stipulates that a constitutional complaint can only be raised following exhaustion of prior legal remedies.

COMPLAINTS

1. The applicant complained under Article s 8 and 10 of the Convention about the search of her premises and the seizure of her property.

2. Invoking Article 6 § 1 of the Convention, the applicant complained about having been denied access to the case-file.

3. The applicant further complained under Article 1 of Protocol No. 1 to the Convention about the seizure of her property.

THE LAW

The applicant complained that the search of her residential premises carried out on 18 July 2001 violated her rights to respect for private life and to freedom of expression. She invoked Articles 8 and 10 of the Convention, which read as follows:

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

She further invoked Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.

The applicant maintained, in particular, that the search and seizure of her property had not been in accordance with the domestic law, as they did not comply with section 53 § 1 no. 5 in conjunction with section 97 § 5 of the Code of Criminal Procedure as applicable at the relevant time. According to the applicant, the material seized on 18 July 2001 contained confidential information which was intended for publication in periodically published material and broadcasting media and was thus exempt from seizure.

1. The Government ’ s submissions

The Government submitted that the applicant had failed to exhaust domestic remedies pursuant to Article 35 § 1 of the Convention both in respect of the search of her premises and of the seizure of her property. According to the Government, the applicant, in her appeal against the search warrant, had failed to submit to the Frankfurt Regional Court that she had researched the relevant material for a periodical publication, but rather declared that the material had been intended for her book project. Accordingly, the Regional Court had not been given the opportunity to examine whether the search concerned documents which were exempt from seizure pursuant to section 97 § 5 of the Code of Criminal Procedure on account of the fact that they had been produced for periodically published material. The Regional Court had therefore been denied the opportunity to examine the alleged violation.

The Government further maintained that the applicant ’ s constitutional complaint was inadmissible because the applicant had failed to exhaust prior domestic remedies for the reasons set out above; neither had she contested the constitutionality of the relevant domestic provisions before the Regional Court.

With regard to the seizure and retention of the applicant ’ s property, the Government submitted that the applicant had failed to appeal against the Frankfurt District Court ’ s rejection of her request to hand out her folder. Furthermore, she did not apply for a court decision in respect of the remainder of the seized material. It followed that the domestic courts had not been in a position to grant her adequate protection of her rights.

2. The applicant ’ s submissions

The applicant contested these submissions. According to the applicant, she submitted on several occasions to the Frankfurt Regional Court the basis for her right to refuse to give evidence, particularly in the detailed court correspondence of July and August 2001 and previously, to the Frankfurt Public Prosecutor, in January and February 2001. Subsequently, she lodged her constitutional complaint in accordance with the relevant formal requirements. There appeared to be no discernible reason why the Federal Constitutional Court refused to consider her complaint. The applicant further pointed out that she had not been given any access to the domestic case-files and that she had not been represented by counsel before the domestic courts.

With respect to the seizure and retention of her property, the applicant pointed out that both her appeal to the Frankfurt Regional Court and her constitutional complaint explicitly related to the seizure of these documents. She had, moreover, frequently demanded that the domestic authorities handed over her property. Accordingly, she had availed herself of all available means to have her property returned.

3. The Court ’ s assessment

The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Civet v. France [GC], no. 29340/95, § 41 , ECHR 1999 ‑ VI ). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France , judgment of 19 March 1991, Series A no. 200, p. 18, § 34; Elçi and others v. Turke y, nos. 23145/93 and 25091/94, § 604, 13 November 2003; Uhl v. Germany (dec.), no. 64387/01, 6 May 2004).

Turning to the circumstances of the present case, the Court observes, at the outset, that the applicant ’ s complaints are primarily based on the allegation that the search of her premises carried out on 18 July 2001 had not been in accordance with the domestic law, as the material seized during the search had been exempt from seizure. According to her submissions to the Court, the material contained confidential information which was given to her in the course of her journalistic research work for television broadcasts.

The Court observes that under section 53 § 1 No. 5 in conjunction with section 79 § 5 of the Code of Criminal Procedure as applicable at the relevant time, the seizure of a journalist ’ s documents and other data carriers was inadmissible insofar as they related to his or her work for periodically published material or radio broadcasts and contained information given to them by third persons.

The Court further notes that in her appeal against the search warrant lodged with the Frankfurt Regional Court on 18 July 2001, the applicant, while relying on her journalist ’ s right not to give evidence, did not mention her work for television broadcasts, but submitted that the seized material related to her book project. As regards the applicant ’ s counsel ’ s further submissions in his letter of 2 August 2001, the Court observes that this letter, which was addressed to the Frankfurt Public Prosecutor, did not reach the Frankfurt Regional Court before it had given its decision on the applicant ’ s appeal on 31 July 2001.

Accordingly, the Frankfurt Regional Court , when reaching its decision on the applicant ’ s appeal against the search warrant, was bound to start on the assumption that the seized material contained information which was the result of the applicant ’ s research for her book project. Under these circumstances, the Regional Court had no reason to consider that the seized material had been part of her journalistic research for radio broadcasts and could thus be exempt from seizure pursuant to the relevant domestic law. It follows that the applicant has failed to submit all relevant information underlying her complaint to the Frankfurt Regional Court , which was the only domestic court instance competent to establish the facts relating to the applicant ’ s complaint on the basis of her own submissions.

The Federal Constitutional Court had been prevented from examining the applicant ’ s complaint for non-compliance with procedural requirements, because she had failed to exhaust prior remedies.

Under these circumstances, the Court considers that the applicant has failed sufficiently to submit the substance of her complaint against the search warrant to the domestic courts. It follows that she had failed to exhaust domestic remedies in this respect.

The applicant ’ s complaints relating to the search warrant and the seizure of her property executed on 18 July 2001 must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

Insofar as the applicant complained about the further retention of her property and about the denial of access to the case-file following the termination of her complaint proceedings, the Court observes that the applicant did not lodge an appeal against the Frankfurt District Court ’ s decision not to return her file, neither did she establish that she availed herself of any further remedies – including a constitutional complaint – with regard to the remainder of the seized objects and the denial of access to the case-file. It follows that also this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President